Volume 19, 2015

Phillipa Norman

International environmental law, policy and negotiations are not gender neutral, but rather arenas where power is expressed through silencing ecological perspectives and the concerns of women and gender advocates. Drawing on a feminist ecological perspective, this article considers how environmental problems, like gender inequalities, are symptoms of problematic value-hierarchical thinking like patriarchal dualism which condones the exploitation of women and nature. Despite the gender differential impacts of environmental degradation, there is an enduring lacuna in international environmental law arising from the failure to examine structural causes of inequality and environmental problems. This article critiques the paradoxical dominance of econo- mism and growth models of sustainable development which rely on women and nature to subsidise the system through their labour and ecosystem services. A practical alternative to economism is “gender- sensitive ecologism”. This framework can inform gender and ecological literacy at all levels — from “bottom-up” civil society and grassroots projects to the texts of international environmental treaties. Soft law’s inclusive process offers a starting point for progressive norm dissemination with the Earth Charter as a prime example of a gender and ecologically literate ethical framework.

Vanessa Wills

The Clean Development Mechanism (CDM), established under the Kyoto Protocol, is the primary international offset programme, generating carbon offsets through investments in greenhouse gas reduction (certified emission reductions (CERs)), avoidance, and sequestration projects in developing countries. Developed countries can use CERs to cost-effectively achieve their emission reductions targets under the Kyoto Protocol. The CDM is therefore seen as “innovative”, bridging the gap between developed and developing countries. While CDM has grown into an important instrument of the Kyoto Protocol, it has also posed a number of considerable challenges for the future in terms of its framework and functionality, as well as its lack of financial resources, together plaguing it since inception. This continues to give rise to questions around the CDM’s longevity in its current state. With tremendous growth since the first project was registered on 18 November 2004, the CDM has become an immense global market. It continues to expand, with the United Nations Framework for Convention on Climate Change projecting 2,394,075,697 CERs will be issued by the end of 2015. The analysis in this article highlights the operational issues within the CDM, demonstrating its perverse incentives and ambivalent attitude towards poverty and poverty-ridden countries. The analysis concludes that, ultimately, the CDM in its current form is unsustainable, and has fallen short of effectively achieving its objectives — to promote sustainable development in developing countries and to assist countries in achieving compliance with their emission reductions commitments, and to mitigate climate change. Therefore, the future of the CDM, its objectives, implementation and framework must be taken into account when assessing the future of the Kyoto Protocol and a new climate change treaty at Paris 2015.

Bethany Horner

Human rights issues have become of critical concern, where the environmental legal regime is infused by the economic justifications of market-based mechanisms alongside environmental considerations, with little consideration accorded to rights affected by such schemes. This article examines the varying causes of human rights violations in both the CDM and the REDD+ climate change mechanisms under the UNFCCC. The article identifies key issues in the CDM’s additionality and sustainable development objectives, leading to the failure to safeguard human rights in cases such as the Bajo Aguán case example in Honduras. Through scrutinising the developments of this instrument and comparing it to the REDD+ projects currently under way, the article seeks to identify critical issues in the system which need resolving for the multinational REDD+ climate change mechanism to be successful in 2020. Through examining the issues that the REDD+ projects currently face in comparison, it is found to be imperative that social and ecological safeguards be recognised as a first step towards fair co-existence with human rights. This article argues that where adequate safeguards protecting human rights are put in place, not only could the emission reduction objectives under the UNFCCC be achieved, but in doing so this can support biodiversity, promote sustainable development and reduce poverty.

Samuel P Leonard

Climate change is a “wicked” problem with far-reaching and potentially catastrophic effects. Recognising the anthropogenic component to climate change, governments around the world have agreed multilaterally to reduce carbon emissions. New Zealand’s commitment to this global effort began in September 2008 with the New Zealand Emissions Trading Scheme (NZ ETS). The NZ ETS was designed with the dual purpose of meeting New Zealand’s international commitments under the United Nations Framework Convention on Climate Change and of serving as the Government’s primary response to climate change. The NZ ETS is the chosen vehicle to drive New Zealand’s greenhouse gas (GHG) emissions reductions by incentivising the country’s major emitters to cut their emissions. Subsequent amendments to the NZ ETS in 2009 and 2012, however, have gutted the effectiveness of the scheme. There is currently little or no incentive for New Zealand’s major emitters to reduce emissions in order to meet NZ ETS obligations. The agricultural sector of New Zealand is responsible for approximately half the country’s total GHG emissions but has been indefinitely excluded from the NZ ETS. This exclusion, combined with a free allocation of New Zealand emissions units for other emissions- intensive industries, means the scope for actual GHG emissions reduction incentives is very limited. This is especially so given that the NZ ETS is heavily dependent on offsets to meet reduction obligations and as a result any actual reductions are mostly negligible. The NZ ETS is also schizophrenic in nature, combining aspects of both a cap- and-trade scheme and a carbon tax. This lack of distinction hinders the efficiency of the scheme which would function better as one or the other. The decision of the Government not to participate in the second Kyoto commitment period and loss of access to Kyoto markets means that the NZ ETS has a very uncertain future. It is stuck in a perpetual transitional phase which is unlikely to change unless New Zealand has renewed legally binding emissions reductions targets, negotiated under a new international climate agreement.

Kristen Jones

Empirical evidence shows that other OECD countries are pulling ahead of New Zealand, reaching higher levels of energy efficiency and lower levels of CO2 emissions from their light transport fleets (private passenger cars). A key reason for this lag is the lack of specific energy efficiency regulations or standards in New Zealand. The main submission made is that the time is ripe for a substantial overview of New Zealand’s light transport fleet as it produces the greatest amount of CO2 emissions in the transport sector. New Zealand’s greenhouse gas emissions profile is different from that of many other developed countries because it is primarily an agricultural producing economy with high methane gas emissions. It already has high levels of renewable energy in its electricity sector, which leaves transport as one of the best remaining areas from which to extract energy efficiency to reduce New Zealand’s CO2 emissions. This article identifies the clear and widening gap in energy efficiency in New Zealand’s transport sector. It then examines the international and national environment to determine whether the legal framework is in place to introduce energy efficiency regulations/ standards in line with other OECD countries. The conclusion is that the existing legal structure is sufficient for regulations/standards to be made. With New Zealand’s Energy Efficiency and Conservation Strategy (New Zealand’s primary policy document on energy efficiency and conservation matters) to be reviewed in mid-2016 and remaining in place until 2021, there is now an opportunity to set new policy and targets to achieve greater energy efficiency and CO2 reductions from New Zealand’s light transport fleet.

Pip Wallace and Shaun Fluker

The need to protect threatened species and facilitate their recovery to viable population levels enjoys widespread international support, but it is the domestic legal rules of individual nations that will implement international calls for protection and recovery. New Zealand purports to protect threatened species primarily with the Wildlife Act 1953, a statute whose purpose is more concerned with wildlife management than implementing a legal framework to protect threatened species. The consensus is that the Wildlife Act 1953 and other applicable legislation such as the Resource Management Act 1991 is not up to the task of protection and recovery of threatened species in New Zealand. In this article we explore how dedicated threatened species legislation in New Zealand might improve on the existing legal framework, and in particular with respect to the designation and planning on threatened species, recovery programmes and habitat protection. For an illustration of how these components may contribute to the threatened species problem we look to Canada as a nation which enacted dedicated threatened species legislation in 2002. The story thus far in Canada suggests legal rules are not a panacea for species decline, but nonetheless dedicated legislation can offer substantial benefits such as transparency and a systematic approach to species planning, better integration with resource development, and a measure of accountability in law to hold public officials to their promises on threatened species protection.

Connie Bollen

New Zealand is a nation reliant on the agricultural industry. A decade of intensification in the dairy sector has led to scrutiny of the adverse environmental impacts farming practices have on freshwater ways throughout the country. The excess nutrients discharged onto land which reach waterways are of notable concern. This article provides an overview of the current methods and measures for freshwater management in New Zealand’s largest industry. It examines the interaction of national guidance from central government, industry initiatives and the role regional councils play in reducing pollution. Particular focus is given to New Zealand’s two largest dairy regions, Waikato and Canterbury. All the efforts made in this area need to reflect the “common interests” of ensuring fresh water is wisely managed. 

Catherine Dearsley

This article addresses the question of whether New Zealand’s law and policy is adequate to deal with the problem of cadmium in our soil, food and water which occurs as a result of phosphate fertiliser use on production land. It finds that the Resource Management Act 1991 was drafted with the foresight to manage these issues making provision for ministers and local government to more strongly regulate contaminants, yet they are not consistently or adequately doing so. There is much promise in an ambitious National Cadmium Management Strategy launched in 2011, which is designed to provide a national approach for managing cadmium in New Zealand agriculture. Until this produces tangible results, we remain in the situation where shortfalls in the contaminated land regime and food safety result in inconsistent national regulation which has little or no scrutiny or enforcement. The point at which legal responses are triggered is only once the damage is done; the equivalent of the ambulance at the bottom of the cliff. There are three main significant issues flowing from cadmium soil contamination. Firstly, accumulating cadmium in soils until it reaches the soil guideline for its intended use results in the loss of versatile soil capacity. Secondly, cadmium levels in food are regulated and non-compliance with the food standards because of soil contamination can also lead to loss of this soil capacity. Thirdly, soil contamination has the potential to result in international market restrictions for our produce and harm the reputation we strongly trade and rely upon. The issues are complex and we require greater understanding of the processes and pathways in which cadmium acts in our bodies, our food, our plants, our soils and waterways. This article finds that alongside the voluntary initiatives promoted under the national strategy there would be benefits from regulation to ensure appropriate testing to identify land with higher cadmium levels, and the cadmium status of higher-risk food strains, as well as stipulating new lower maximum levels of cadmium in fertiliser. The management of these factors is seen as critical to achieving sustainable long-term farming in New Zealand.

Brendan Abley

New Zealand does not currently use nuclear sources to produce electricity. In 1978 a Royal Commission of Inquiry concluded that New Zealand would not need to consider nuclear power as an option until the 21st century. This article revisits the Royal Commission’s conclusions, and analyses whether the time has come for New Zealand to reconsider its position on nuclear energy. The article carries out this analysis in light of the Government’s recent goals of providing energy security and minimising greenhouse gas emissions. In doing so, the article reviews the current legal regime for nuclear technologies and considers the Canadian regulatory framework as a model for future developments. It then assesses New Zealand’s likely future electricity needs, and whether New Zealand can meet these needs with renewable sources. The article considers whether nuclear energy would be a better option to meet the energy challenges of the 21st century.